The above is actually important to point out. Should be self-evident right? Nope.

Too many talented and experienced attorneys blow their cases for failing to adhere to probate creditor claim rules and time lines. This post by Juan Antunez of The Florida Probate & Trust Litigation Blog is a perfect example of how wrong things can go if you’re not paying attention to probate court rules. The below summary of 2010 WL 479862 (Fla. 1st DCA Feb 12, 2010) is from Mr. Antunez:

Wald was involved in an automobile/motorcycle accident with the decedent and brought a personal injury lawsuit to recover damages. Wald eventually prevailed in his lawsuit, but the judgment was not rendered until after the decedent’s death. Some time after obtaining the judgment, Wald filed a claim against the probate estate.

The personal representative argued she had served notice on Wald’s attorney as required by Florida Probate Rule 5.041(b) (2009) on May 23, 2007, thus triggering the time constraints of section 733.702(1). Therefore, under the statute, Wald had until June 22, 2007, to file any claim he might have. Since Wald’s claim was not filed until July 2, 2007, the personal representative argued it was untimely and forever barred.

Plaintiffs suing estates often fail to realize that they’re really litigating their claims in two separate courts in front of two separate judges:

The trial court adjudicating their lawsuit (this is where the decedent’s liability is established); and

The probate court administering the decedent’s probate estate (this is where you go to collect on your judgment)

Ohio’s rules for presenting claims against an estate are found in R.C. 2117. 2117.06 gives a creditor 6 months after a decedent dies to present a claim or, as in Florida, the claim is forever barred. A distinction is necessary here though. If the above case had happened in Ohio, the Plaintiff still likely could have won something from decedent defendant’s non-probate property. I’m thinking here of decedent defendant’s auto insurance coverage. Assets from insurance that are recoverable as damages in a tort action are non-probate property (typically). Thus these assets aren’t governed by 2117.06. You have the regular time allowed under Ohio law to bring a claim of this type – 2 years I think in Ohio for personal injury claims. However, if the defendant dies during the case, or perhaps died as a result of the accident before the case was filed, you still have to pay attention to the probate court deadlines if you want to retain the ability to recover from defendant’s estate. Hypothetical: Plaintiff wins their case against defendant for liability stemming from a car accident. Defendant died as a result of the accident. Plaintiff gets a $1 million dollar judgment against Plaintiff. (I know that’s high but its my hypothetical.) Defendant had insurance which will pay Plaintiff, however, Plaintiff’s insurance company will not pay any more than policy limits. SO, the insurance isn’t sufficient to pay the full claim and now Plaintiff wants to/has to recover the deficiency against decedent’s estate but we’re now more than six months from the date of defendant’s death. Plaintiff is out of luck. Nothing they can do about it. Even if defendant dies with a multi-million dollar estate, Plaintiff gets nothing from that estate if their claim wasn’t timely filed. This situation, similar to the one linked to above = a malpractice lawsuit against the attorney who failed to adhere to the probate code’s deadline.

In the opinion of the linked-to case (available here as a PDF), the court was none-too-pleased with plaintiff’s attorney for blowing this deadline:

Filing a probate claim is a relatively simple act and requires nothing more than submitting a written statement of the case. If for some reason Wald’s attorney was unable to file the claim, he certainly could have referred Wald to another attorney or advised Wald about the need to timely file a claim. Wald’s attorney failed to accomplish this simple task.

Ouch. Probate deadlines are important people! If you’re litigating a personal injury case or any other claim that even may have to be collected from a probate estate, find yourself a good probate attorney to advise on the collection procedures in your local probate court. Otherwise you may need a good malpractice attorney.

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About The Ohio T&E Blog

The Ohio Trust & Estate Blog has recently been selected as a Top 25 Estate, Probate and Elder Law Blog by LexisNexis!

Welcome to The Ohio Trust & Estate Blog. My name is Michael D. Bonasera. I am an attorney licensed only in the state of Ohio. I am an associate practicing in the Columbus, Ohio office of Dinsmore & Shohl, LLP. I work principally in trust and estate planning and I also do a lot of work in probate and in enforcement of fiduciary rights and responsibilities.

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Disclaimer:
This blog does not give legal advice. This blog does not create an attorney client relationship. You are not permitted to rely on anything in this blog for any reason. This blog is an entirely personal endeavor. This blog is intended and designed to create a forum for discussing the legal issues surrounding estate planning and probate.